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Crimes Against the “Other”:
Conceptual, Operational, and Empirical
Challenges for Hate Studies
Neil Chakraborti
University of Leicester
I. I
NTRODUCTION
At the most recent annual meeting of the American Society of Crimi-
nology (ASC), I was struck by the sheer quantity–if not necessarily the
quality–of papers centered on hate crime and the extent to which the subject
appears to have become “mainstreamed” within American scholarship and
policy. As a hate crime scholar from the United Kingdom, this was a novel
experience for me and evidence of how far we in the UK have lagged
behind other nations with respect to developing and promoting hate crime
discourse within criminology and related disciplines. Although the concept
of “hate” in the context of both actions and speech is firmly enshrined
across most jurisdictions with which the UK shares political and legal tradi-
tions, it is only within the past ten years that the term “hate crime” has
come to assume particular relevance to criminologists and policy-makers in
my country. Unlike in the U.S., for example, where contemporary hate
crime discourse can be traced back to the convergence of a series of pro-
gressive social movements from the 1960s and beyond, the prioritization of
hate crime in the UK has gained pace much more recently in the aftermath
of a number of high-profile incidents that took place toward the end of the
last and the start of the current century, most notably the murder of Stephen
Lawrence in 1993 and the subsequent publication of the Macpherson report
in 1999.
1
Given its comparatively recent adoption within the policy domain, it is
perhaps not altogether surprising that hate crime is, as Iganski (2008) sug-
gests, a nascent area of scholarship for British criminology. As such, the
ideas of scholars from other countries–and in particular those writing from
a North American (Jacobs & Potter, 1998; Perry, 2001, 2003a) and an Aus-
tralian perspective (Mason, 2005, 2007)–have acted as a catalyst for further
academic enquiry within the UK (see, for instance, Iganski, 2002, 2008;
Hall, 2005a; Chakraborti & Garland, 2009). That said, the types of offenses
commonly grouped under the hate crime banner have in fact been
researched and debated extensively within the UK, some more so than
others. Hate crime cuts through numerous themes central to social scientific
enquiry, whether they be “race,” ethnicity, gender, sexuality, or simply
9
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10 JOURNAL OF HATE STUDIES [Vol. 8:9
“otherness” per se, and while relatively few attempts have been made by
British scholars to examine these themes through the conceptual lens of
hate, their empirical and theoretical contributions have invariably influ-
enced the development of hate crime scholarship within that country.
The present article draws from this emerging body of knowledge to
outline some of the key conceptual, operational, and empirical challenges
now facing researchers and policy-makers. Though written from the per-
spective of a British hate crime scholar, the issues raised are international in
nature: Indeed, in much the same way that expressions of hate pose
problems that cut across disciplines, across communities, and across bor-
ders, so too must responses be informed through international, intersec-
tional, and interdisciplinary perspectives that serve to widen our
understanding. Hate crime remains a contested and highly complex area of
study and policy, and the deeper we delve to find solutions and answers, the
more likely we are to stumble across further problems and questions. Identi-
fying how best to resolve them is a difficult, ongoing task, but one that
should form the basis of any progressive dialogue among hate crime schol-
ars, policy makers, and practitioners. The nature of these problems and
questions–and more importantly, the ways in which we can use them to
shape contemporary hate crime discourse–is what this article seeks to
explore.
I should note also that this article unashamedly steers clear of numbers
and quantitative analysis. I made reference earlier, perhaps a little unfairly,
to what I and other hate crime scholars in attendance perceived to be a lack
of quality in some of the papers presented at the last ASC conference, and
this in part stemmed from what seemed like a preoccupation with examin-
ing numbers of hate incidents without any accompanying critical analysis of
the meaning and broader context behind these numbers. Hate crimes, as is
argued more fully below, are not merely incidents that can be counted, and
for us to properly develop a qualitative understanding of hate crime perpe-
tration and victimization, we need to reflect more carefully upon the
processes that give rise to hatred and the ways in which we can construct
effective responses. In a similar vein to Perry’s (2003b) musings on
neglected areas of hate crime scholarship, this article welcomes the
advances that we have made collectively in terms of developing our qualita-
tive understanding, but focuses deliberately upon the various challenges
confronting scholars and policy-makers in this field as we seek to push the
“hate debate” forward.
II. D
EFINING
H
ATE
C
RIME
The nature of these types of challenges will be explored shortly. First,
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however–and given that this article is written from a British perspective–it
is important to briefly outline what the term hate crime has come to mean in
the context of British scholarship. Perhaps unsurprisingly, the suggestions
of American scholars have been especially influential, and writers such as
Sheffield (1995), Jenness (2002), Petrosino (2003), and Gerstenfeld (2004)
have each helped to convey that the term has a deeper sense beyond its
literal interpretation of referring to crimes motivated by hatred. As is now
widely accepted, hate crimes are not simply crimes in which the offender
hates the victim, nor indeed do such crimes need to be motivated by hatred
at all in order to be classified as hate crime. It is perhaps Barbara Perry’s
(2001, p. 10) definition that is regarded by British scholars as offering the
most comprehensive account of a hate crime:
Hate crime . . . involves acts of violence and intimidation, usually
directed towards already stigmatized and marginalized groups. As such, it
is a mechanism of power and oppression, intended to reaffirm the preca-
rious hierarchies that characterize a given social order. It attempts to re-
create simultaneously the threatened (real or imagined) hegemony of the
perpetrator’s group and the “appropriate” subordinate identity of the vic-
tim’s group. It is a means of marking both the Self and the Other in such
a way as to re-establish their “proper” relative positions, as given and
reproduced by broader ideologies and patterns of social and political
inequality.
This framework offered by Perry makes reference to the relationship
between hierarchies and hate, and gives primacy to the notion of violent and
intimidating behavior being somehow different when it involves an act of
bigotry directed toward stigmatized and marginalized communities. Moreo-
ver, Perry’s conceptualization of hate crime recognizes that hate crime is
not a static problem, but instead should be seen as a dynamic social process
involving context, structure, and agency. In this regard, Perry takes her lead
from the work of Bowling (1993, 1999), whose reference to the relevance
of repeated or systematic victimization, historical context, and the social
relationship between all the actors involved in the process of victimization
is seen by Perry as being directly relevant to the way in which we should
conceive of hate crime. Also key for Perry is the group identity of the vic-
tim, with hate crimes best being viewed as “message crimes” directed not
only toward the victim, but also toward the wider community to which he
or she belongs—as acts of violence or intimidation designed to spread fear
and to reaffirm “the hegemony of the perpetrator’s and the ‘appropriate’
subordinate identity of the victim’s group” (Perry, 2001, p. 10).
While hate crime scholars have sought to grapple with what they see
as the complexity associated with the term, official classifications have
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12 JOURNAL OF HATE STUDIES [Vol. 8:9
tended to be significantly less intricate in their interpretations of hate crime.
Within the UK, the key source of policy guidance on hate crime comes
from the Association of Chief Police Officers (ACPO), whose operational
definition is enshrined within their guidelines for police forces in England,
Wales, and Northern Ireland (ACPO, 2000, 2005, 2010).
2
Importantly, this
guidance distinguishes between hate incidents and hate crimes, requiring
police forces to record all incidents, even if they lack the requisite elements
to be classified as a notifiable offense later in the criminal justice process.
In this context, ACPO takes its lead from the landmark Macpherson
inquiry; the group’s attempts to address the deep-rooted institutional racism
identified as being embedded within police culture by that inquiry resulted
in the adoption of a more flexible interpretation of a racist incident.
3
Under
this interpretation, it is not the police officer, but the victim (or indeed any
other person present) who decides whether an incident should be classed as
racist; moreover, the incident need not be a crime for it to be recorded by
the police, but can include any occurrence; nor must it have an evidential
basis or an obvious causal link to be classed as racist: In the UK’s post-
Macpherson environment, perception on the part of the victim is the key to
an incident’s being defined as racist (for further discussion, see Hall,
Grieve, & Savage, 2009).
Accordingly, the hate crime guidance issued by ACPO stipulates that
any hate incident, whether a prima facie “crime” or not, should be recorded
if it meets the threshold originally laid down by the Macpherson definition
of a racist incident–namely, if it is perceived by the victim or any other
person as being motivated by prejudice or hate–and not the stricter, eviden-
tial threshold required under criminal law for notifiable offenses. Moreover,
this policy framework makes specific reference to prejudice, and not simply
hate. In stating explicitly that hate crimes or incidents are not always con-
cerned with hate but rather with prejudice, ACPO’s guidelines follow the
logic presented by the academic definitions described above in suggesting
that the presence of hate is not central to the commission of a hate crime.
Evidently, hate might appear to be a distinctly unhelpful term in many
respects, as both academic and practitioner definitions tend to direct our
attention toward certain forms of prejudice, a considerably more expansive
notion than that of hate, covering many varieties of human emotion, of
which hate may be only a small and extreme part (Hall, 2005a). This is a
point of concern to some commentators, and one to which the article returns
in due course. However, ACPO’s (2005) guidance does offer some assis-
tance with regard to distinguishing between “acceptable” and “unaccept-
able” prejudice by alluding to particular grounds for prejudice or hatred:
namely, “race,” sexual orientation, transgender status, faith, and disability.
According to the UK’s official criminal justice system interpretation of hate
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crime, therefore, it is not just any prejudice that can form the basis of a hate
crime, but rather prejudice based upon those particular grounds specified by
ACPO.
4
III. T
HE
D
EVELOPMENT OF
H
ATE
C
RIME
L
AWS
In the context of the discussion that follows, it is worth also outlining
very briefly the UK’s legal framework for hate crime, as it is quite different
in some respects from the American approach. In the U.S., the concept of
hate crime is firmly enshrined within the law through a series of federal-
and state-level hate crime acts, and these have been bolstered most recently
through the expansion of federal hate crime law to cover crimes committed
on the grounds of gender, sexual orientation, gender identity, and disability.
As Lawrence (2009) points out, virtually every state in the U.S. criminal-
izes hate crime, with some laws giving primacy to the animus exhibited by
the perpetrator of a crime against a member of a perceived or actual pro-
tected group and others focusing on the perpetrator’s selection of the vic-
tim. There is no comparative set of laws as such in the UK that gives as
explicit an acknowledgement of the term hate crime, and this is reflective of
hate crime’s different origins within the two countries and of the more
established status of hate crime within the popular lexicon of American
society.
That said, however, within the UK we do now have a number of laws
that adhere to the principle that crimes motivated by hatred or prejudice
toward particular features of the victim’s identity should be treated differ-
ently from “ordinary” crimes. Within this context, an especially significant
piece of legislation is the Crime and Disorder Act 1998, and in particular
sections 28-32. These are the provisions relating to racially aggravated
offenses, which in essence amount to a “penalty enhancement statute”
(Lawrence, 1999, p. 92) enabling higher sentences to be awarded for crimes
that are racially aggravated. The original Crime and Disorder Act provi-
sions have also been amended by section 39 of the Anti-Terrorism, Crime
and Security Act 2001, which extends the principle of penalty enhancement
to include religiously aggravated offenses; similarly, section 146 of the
Criminal Justice Act 2003 empowers courts to impose increased sentences
for offenses motivated by hostility toward the victim’s sexual orientation, or
his or her mental or physical disability.
Hate has also been criminalized through the various strands of incite-
ment legislation. Protection against the incitement of racial hatred can be
found within section 17 of the Public Order Act 1986, which prohibits the
use of words, whether oral or written, or behavior deemed “threatening,
abusive or insulting,” and puts in place both a subjective standard of guilt
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14 JOURNAL OF HATE STUDIES [Vol. 8:9
(where there is intention to stir up racial hatred) and an alternative objective
threshold (where “having regard to all the circumstances racial hatred is
likely to be stirred up thereby”). More recently, the Public Order Act has
been amended through section 29 of the Racial and Religious Hatred Act
2006, which governs the incitement of hatred toward people on the basis of
their faith. While similar in many respects to the equivalent racial hatred
laws, the incitement to religious hatred provisions have a higher legal
threshold in that they can be used only in cases involving threatening (and
not abusive or insulting) words or behavior, and where the prosecution can
prove that the perpetrator intended to stir up religious hatred (i.e. a subjec-
tive standard of guilt). The protective coverage of incitement laws–or anti-
vilification laws, to borrow a term used by Australian hate crime scholars
(Gelber & Stone, 2007)–has also been extended to the incitement of hatred
on the grounds of sexual orientation under section 74 of the Criminal Jus-
tice and Immigration Act 2008, which criminalizes the stirring up of hatred
against LGBT communities
5
under a threshold similar to that specified in
the Racial and Religious Hatred Act.
Notwithstanding the various concerns associated with the effective-
ness, legitimacy, and interpretation of these pieces of legislation (see, inter
alia, Chakraborti & Garland, 2009), this necessarily brief overview of the
current legal framework illustrates the way in which the concept of hate
crime has, within a relatively short space of time, been given an established
legal footing within the UK. Nevertheless, while there is some degree of
consistency in the message conveyed to criminal justice agencies,
sentencers, and the general public through this emergent hate crime agenda,
there is also a series of inconsistencies associated with the application of
hate crime that have raised questions over its future viability. It is to a con-
sideration of these inconsistencies that the paper now turns.
IV. C
ONCEPTUAL
C
HALLENGES
Despite improvements in policy and practice associated with the rise
of the hate crime agenda, commentators remain divided on the application
of the hate crime label. One especially contested and well-documented
aspect of hate crime relates to its conceptual ambiguity. As discussed
already, police forces across the UK are obliged to record hate incidents,
and not just crimes, meaning that much of what falls under the remit of hate
crime may not be crimes per se, but incidents perceived by the victim as
being motivated by hate or prejudice. Therefore, hate crimes may not neces-
sarily be crimes, and may not necessarily be motivated by hatred. Most
academic and practitioner definitions are consistent in recognizing hate
crime as conduct motivated by prejudice on particular grounds or directed
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against particular groups of people. Prejudice is a much more expansive
notion than hate, covering all manner of behaviors, some acceptable, some
unacceptable, and this clearly has implications for those framing hate crime
laws who are required to make difficult moral judgements about the types
of prejudices to be punished or tolerated and the groups of peoples to be
protected or unprotected (Hall, 2005a).
It is not simply the decision over which forms of prejudice to legislate
against that presents cause for concern, but also the strength of the causal
relationship between the prejudice and the offense. Famously, Jacobs and
Potter (1998, pp. 22-28) present arguably the most forceful illustration of
this point by categorizing hate crimes into four broad types, some of which,
they argue, are more contestable than others. For instance, they see no prob-
lem with describing offenses that are carried out by highly prejudiced per-
petrators, and whose prejudice has a strong causal bearing on their
offending behavior, as hate crimes: These are crimes that might immedi-
ately spring to mind if one were conceiving of “hate” in its literal sense,
such as organized extremist hatred or acts of violence clearly motivated by
hatred of a particular group identity. Limiting the scope of hate crime to
offenses such as these would be uncontroversial, but of limited practical
utility since these types of extreme cases would in most jurisdictions
already be punishable under the highest possible sentencing tariff.
However, the other three “types” are more problematic for Jacobs and
Potter (1998). Their second “type,” for instance, refers to offenses again
committed by highly prejudiced offenders but whose offending behavior is
not strongly or exclusively linked to their prejudice, and they argue that it
would be wrong to automatically assume that all offenses under this cate-
gory–namely, offenses committed by prejudiced offenders against minority
groups–are hate offenses. Equally, offenses committed under their third
grouping–by offenders who are not especially prejudiced individuals, but
whose prejudice, perhaps subconsciously, bears a strong link to the
offense–makes up the majority of officially designated hate crimes in the
U.S. because it is often assumed (erroneously, in the eyes of Jacobs and
Potter) that a crime committed by a member of one group against a member
of another constitutes a hate crime irrespective of the strength of the preju-
dicial motivation. The hate crime label is even applied sometimes to what
they refer to as situational offenses, their fourth “type”: offenses that are
neither the product of highly prejudiced beliefs nor strongly linked to the
offender’s prejudice, but that instead arise from “ad hoc disputes and flash-
ing tempers” (1998, p. 26).
Jacobs and Potter’s (1998) critique underlines that hate crime is a con-
ceptually ambiguous construct open to different interpretations, and it is this
ambiguity–and its potential to create hierarchies of acceptable and unac-
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16 JOURNAL OF HATE STUDIES [Vol. 8:9
ceptable prejudices and to penalize behavior motivated only in part by
prejudice–that leaves it susceptible to criticism. However–and crucially in
the context of mapping a way forward for scholarship and policy–the argu-
ments of critics such as Jacobs and Potter do not lend themselves to a par-
ticularly straightforward alternative. For instance, one option could be to
simply “do away with” the concept of hate crime, a seemingly logical
stance to adopt were we to follow those arguments through to their conclu-
sion. But in real terms, such a move would raise an even thornier set of
questions. Would abandoning the concept of hate crime require govern-
ments to repeal existing sets of laws governing hate acts and speech?
Would abandoning the concept of hate crime send out the right kind of
message to the more vulnerable, marginalized members of society, or
indeed to those who feel it is legitimate to express prejudice toward such
groups? And would this lead to a regression in criminal justice policy, prac-
tice, and attitudes following the progress that has evolved with hate crime
movement across most Western societies?
There are also problems associated with other options for the present
conceptual framework. For example, some might favor a route where we
stop short of abandoning the hate crime label, but instead take steps to
restrict its application to a more literal interpretation–namely, crimes (not
incidents) motivated by hate (not prejudice) toward a particular group iden-
tity. Undoubtedly, this would help to offset some of the ambiguity inherent
in the concept as we presently know it: The hate crime label would be used
solely in cases in which perpetrators truly hated their victim on the basis of
their membership in a particular group or community and in which this
hatred was the sole or predominant cause of the offending behavior. How-
ever, while conceiving of the concept in such a way would make hate crime
more easily recognizable, as the label would apply exclusively to the more
violent or extreme acts that one might ordinarily associate with crimes of
hate, it would also result in hate crime scholars and policy-makers’ over-
looking the subtler, but equally damaging expressions of prejudice exper-
ienced by victims of hate crime. As a number of writers have shown
(Kelly, 1987; Bowling, 1999; Chakraborti & Garland, 2004), if we are fully
to understand the impact of hate victimization, we need to recognize the
routine, everyday nature of many experiences of prejudice—experiences
that in themselves may not appear especially serious, but that cumulatively,
and when considered in the context of repeat victimization and broader pat-
terns of “othering,” can have damaging and lasting effects upon the victim,
the victim’s family, and the wider community. The cumulative “drip-drip”
effect of this process might well be marginalized under a more restrictive
conceptualization of hate crime.
If we feel that this more literal take on hate crime is too constraining,
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another option might be to reconfigure the label in terms of what it might
more accurately represent. Therefore, if hate crime is not really about hate
as such but more about prejudice, bias, bigotry, or -isms, as most scholars
seem to suggest, then perhaps reconfiguring it something along the lines of
“prejudice crime” or “bias crime” might help to capture the essence of what
these crimes really center on. British scholars such as Hall (2005a, 2005b)
and Goodhall (2007) make reference to the seemingly curious state of
affairs that exists presently, wherein we employ the word hate as a catchall
term to describe behavior motivated by other factors and emotions; indeed,
in some respects, the way in which the term bias crime is often used inter-
changeably with hate crime within much of the North American literature
offers support for using this as a viable alternative (see, for instance, Perry,
2001; Lawrence, 2002; McDevitt, Levin, & Bennett, 2002; Bell, 2003).
That said, however, reclassifying these offenses in accordance with a
different descriptor of the motivation that underpins them does not address
the related conceptual issue of how one should decide which forms of
prejudices or bias should count as warranting enhanced punishment. To
take the current UK position as an example, official ACPO guidance ear-
marks hate crime as hate or prejudice motivated on particular grounds–race,
faith, sexual orientation, transgender status, and disability. At one level,
placing restrictions on the types of “unacceptable” prejudice that can consti-
tute a hate crime is critical to its operational viability, but limiting its appli-
cability to certain groups and not others is a process fraught with danger, as
this requires difficult judgements to be made regarding who should be
deserving of “special protection.” Consequently, the capacity for hate crime
to create a hierarchy of victims, wherein some groups are seen as more
important or worthy than others, is a problem that is central to debates over
the conceptual basis of hate crime, and one that would remain just as con-
tentious were we to reconfigure such offenses as prejudice or bias crime.
A final conceptual alternative that conceivably could get around this
problem might be to restrict the applicability of hate crimes to those who
some might argue are intended to be the primary beneficiaries of its concep-
tion, namely minority groups. Such a switch in focus would, in principle,
offer a number of advantages. Conceiving of these offenses as forms of
“minority group victimization” would arguably make the rationale behind
hate crime laws more explicit and would divert the attention of scholars and
prosecutors toward the bridging factor that links different types of victim
(their shared minority status) and away from the ambiguities associated
with offender motivation. Moreover, although the question of which minor-
ity groups are worthy of extra legislative protection is still open to debate
under this framework, recognizing minorities as the intended beneficiaries
of this protection would nevertheless make explicit the reasons for dis-
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18 JOURNAL OF HATE STUDIES [Vol. 8:9
counting certain crimes that at face value might involve an element of
hate–acts of terrorism, for instance–while including others that might not
necessarily seem to be especially “hate-motivated.” Again though, this
stance is not without its own problems. If we were to take this interpretation
to its logical conclusion, then presumably–and wrongly–members of major-
ity groups could not under any circumstances be protected by hate crime
legislation, even if prosecutors could prove that they had been the victims
of an attack based upon their group identity–their whiteness or their Chris-
tian beliefs, for example. However persuasive the rationale for prioritizing
the protection of minority groups, formulating policies that differentiate
between majority and minority group members, targeted and victimized for
the same reasons and in the same manner, creates its own set of difficulties.
V. O
PERATIONAL
C
HALLENGES
It is not just conceptually that hate crime has been contested. Com-
mentators have raised questions about its operational viability, and in par-
ticular the way in which hate crime laws have been framed and enforced.
As discussed above, the notion of hate crime has been given explicit recog-
nition within the UK through the introduction of both penalty enhancement
and anti-vilification legislation. These pieces of legislation have by no
means been universally welcomed (see, for instance, Iganski, 2002; Cum-
per, 2008; Meer, 2008), but their introduction has given weight to the prin-
ciple behind hate crime by encouraging criminal justice agencies and
sentencers to regard hate crimes as qualitatively different from the same
crimes motivated by different reasons, and by conveying a message to the
public at large, and perhaps more specifically to extremists, that denounces
hatred as not just unpalatable, but also criminal (see also Lawrence, 2002;
McGhee, 2005).
The deterrent capacity of this message has been questioned by crit-
ics—Jacobs and Potter (1998), not surprisingly, among them—who have
raised doubts over the justifications for hate crime laws. For Jacobs and
Potter (pp. 67-68), the declaratory message of condemnation conveyed
through such laws will have a negligible impact upon potential and actual
hate crime offenders, who are unlikely to be any more responsive to this
message than they are to the threats and condemnations enshrined within
other laws that they might regularly contravene. Moreover, these laws can
also have unforeseen consequences: For instance, Bowling and Phillips
(2002) have referred to the unintended backlash against minority groups
that the introduction of hate crime laws can create among those who believe
that such groups receive preferential treatment, while similar observations
have come from Dixon and Gadd (2006), whose research highlights the
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possibility of those prosecuted under hate crime legislation’s concluding
that they are less the perpetrators of a serious offense and more the victim
of a legal system biased in favor of minorities.
The legal provisions governing hate crime can be especially problem-
atic when we begin to take a closer look at the operation of the laws them-
selves. Let us take the example of the UK, where concerns have been raised
by the Crown Prosecution Service (CPS) over the level of evidence required
to justify the imposition of enhanced punishment. As the CPS (2008)
acknowledges, proving that offenses are motivated by prejudice is a process
fraught with difficulty, and one that requires either a clear statement of
intent by the accused or background evidence of motive that often is not
forthcoming. Consequently, and as they go on to observe, many hate crime
cases result in No Further Action (NFA) and do not progress to the prosecu-
tion stage, either because of insufficient evidence or because the victim is
unwilling to support a prosecution. Prosecution figures, therefore, do not in
themselves offer a reliable indication of the extent of hate crime taking
place in the UK, though comparable datasets from other European countries
give us next to nothing to go on. Indeed, the 2007 statistics on hate crimes
taking place in the OSCE (Organisation for Security and Co-operation in
Europe) region reveal that relatively few hate crimes are recorded by other
nations. In countries as large as Italy and Poland, for example, official
figures present a total of only 148 and 125 hate crimes respectively for the
entire year, while the annual totals for other countries are equally eye-catch-
ing: criminal proceedings initiated in as few as 170 hate crime cases in
Russia; ten hate crime cases brought forward for prosecution in Denmark;
no cases whatsoever in Iceland (ODIHR, 2008).
Nevertheless, CPS data on the number of prosecutions brought under
the UK’s respective aggravated provisions do raise important questions, not
so much for the legitimacy of hate crime laws as for the enforcement of
hate crime laws. I would argue that these data are a reflection of how hate
crime laws are being interpreted, and should not be seen as evidence per se
to suggest that the provisions are difficult to enforce or unnecessary addi-
tions to the statute book. For instance, the stark difference between the
number of racial and religiously aggravated prosecutions in 2009—145 as
opposed to 27–is largely attributable to the way in which the CPS decides
how an offense should be charged, as indicated in their guidance below,
which uses antisemitism as an example (CPS, 2008, point 23):
The CPS determines whether an offence should be charged as racially or
religiously aggravated. This will depend upon the circumstances of the
case. If the evidence proves hostility towards the Jewish people, the
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20 JOURNAL OF HATE STUDIES [Vol. 8:9
charge will be racially aggravated. If the hostility is directed more specif-
ically towards the Jewish faith, the charge will be religiously aggravated.
As shown by this tenuous distinction between hostility directed toward peo-
ple and hostility directed toward faith, these grounds for determining
whether offenses should be charged as racially or religiously aggravated are
barely distinguishable. This can result in “race” and faith being conflated,
which runs contrary to the original rationale behind the introduction of sep-
arate provisions on religious aggravation.
Equally, there is more than an element of inconsistency surrounding
the way in which anti-vilification laws have developed in recent years.
Again, taking the UK as an example, under the Public Order Act 1986,
incitement to racial hatred provisions criminalize words, behavior, or mater-
ials that are threatening, abusive, or insulting and that are intended to stir up
hatred, or where hatred is likely to be stirred up. However, the correspond-
ing provisions on incitement to religious hatred are considerably more
restrictive, criminalizing only threatening (not abusive or insulting) words,
behavior, or materials, and requiring evidence of subjective intention to
incite hatred. A similarly tight threshold has been laid down for incitement
to hatred on the grounds of sexual orientation, meaning that there is a clear
distinction between the broader framework of protection guarding against
the incitement of racial hatred and the much narrower framework governing
the incitement to hatred on the grounds of faith and sexual orientation.
This deliberate distinction was further underlined through the inclusion
of explicit defense clauses for freedom of expression that accompanied the
respective sets of provisions on incitement to hatred on the grounds of faith
and sexual orientation.
6
The inclusion of these clauses–designed primarily
to counter accusations that the laws would unfairly penalize criticism of
religion or sexual conduct–is reflective of the delicate balance legislators
have tried to strike between criminalizing hate speech and adhering to the
right to freedom of expression enshrined within Article 10 of the European
Convention on Human Rights. What this leaves us with is a series of dispar-
ities between different types of hate speech: There is no equivalent freedom
of expression clause governing the incitement of racial hatred, and there are
no incitement provisions whatsoever governing the incitement of disablist
hatred.
Without question, this area of hate crime has proved to be particularly
contentious; while most of us would in principle welcome the firmer legal
footing for hate crime that has emerged in recent years, having laws in place
is no guarantee of improved protection from hate unless the laws are prop-
erly framed and implemented. Certainly, the operation of hate crime laws
in any given society will need to be monitored closely by scholars before
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we can conclude with any certainty whether we have been blessed with an
effective set of laws or have created an ineffective set of compromises.
VI. E
MPIRICAL
C
HALLENGES
Hate crime poses a further set of challenges when it comes to advanc-
ing our empirical knowledge. Unquestionably, much good work has been
done across different disciplines to develop our understanding, evidenced
perhaps most vividly through the very welcome publication of Barbara
Perry’s (2009) five-volume set Hate Crimes, a comprehensive collection of
North American and international contributions from the fields of law,
criminology, sociology, psychology, and public health. Similarly, in my
country we have seen important work emerge from within British criminol-
ogy that has helped to move the “hate debate” into fresh areas of empirical
and theoretical enquiry. However, numerous issues remain un- or under-
explored in this field and demand urgent attention from hate scholars from
different countries and different disciplines. For example, what little
research evidence there is on hate crimes against the disabled and trans
communities suggests that these are growing problems that have been over-
looked by criminal justice agencies and policy-makers despite those groups’
being recognized “beneficiaries” of most official discourses on hate crime
(Whittle, Turner, & Al-Alami, 2007; Quarmby, 2008). Greater focus on
these areas would enable scholars to explore their commonalities and differ-
ences with other, more familiar stands of hate crime in terms of perpetrator
motivations and experiences of victimization.
In a similar vein, while we now know more about the experiences of
BME (black and minority ethnic) and LGBT communities in a broad sense,
crass generalizations are often made that result in the overlooking of speci-
ficities and intersectionalities of victimization within these broad-brush cat-
egories. Making generic assumptions about diverse communities at the
expense of learning about the discrete experiences of those who are all too
often subsumed through the labeling of such communities gives us insuffi-
cient information about who the victims of hate crime really are and the
context behind their vulnerability. To truly understand the dynamics of dif-
ference requires us to look toward underresearched and potentially more
complex lines of analysis, whether this be minority-on-minority or minor-
ity-on-majority violence, interfaith tensions, violence against lesbian
women, or the experiences of those who occupy multiple positions of cul-
turally defined inferiority. Equally, it could be argued that we know far too
little about processes of cyberhate, not to mention the collective experiences
of the homeless, the elderly,
7
members of youth subcultures,
8
and other
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22 JOURNAL OF HATE STUDIES [Vol. 8:9
groups whose vulnerability extends beyond the boundaries of most hate
crime policy and scholarly frameworks.
Questions also remain about the perpetrators of hate crime, and we
have seen steps taken in recent years to challenge the popular stereotype of
organized hate groups or committed extremists being responsible for the
majority of offenses. But then who are hate offenders? Are they, as Iganski
(2008) suggests, ordinary people like “us”—“normal” people acting on
mainstream, “common-sense” bigotries that encourage them to blame the
Other for problems blighting their own lives? This, for example, is the kind
of explanation that may account for recent rises in levels of antisemitic hate
crime across the West, where the “transfer of tensions” from the Middle
East and an increase in anti-Zionist or anti-Israeli sentiment is said to have
fueled antisemitic activity (Community Security Trust, 2009). Or might far-
right organizations and hate groups be to blame after all, perhaps not
directly as perpetrators, but because of the influence that their violent rheto-
ric can have on everyday individuals not committed to an extremist ideol-
ogy? Moreover, when thinking about who hate crime perpetrators are, we
may also need to question their relationship to the victim. Are perpetrators
strangers to victims whom they target on the basis of their association with
a particular group identity as opposed to any individual traits, or might they
be more familiar to their victim either as an acquaintance, a friend, a family
member, a carer, or a partner? This would certainly be true of disablist hate
offenses; a number of recent cases in the UK have highlighted the vulnera-
bility of people with learning difficulties to bullying, violence, sexual
abuse, and even torture from those well-known to them. Or perhaps the
victim may know the perpetrator at some level and yet still feel emotionally
distant from him or her, thereby allowing us to conceive of hate crimes as
stranger-danger crimes even when they are committed by people familiar
with their target. As Gail Mason (2005, p. 844) rightly contends, there are
no “one size fits all” solutions to these sorts of questions; rather, and as with
research into victims of hate, we need to refrain from drawing neat, overly
simplistic conclusions based on our assumptions and instead use these mul-
tiple realities as the basis of our empirical journeys.
Furthermore, and in light of the earlier challenges raised within this
paper, future research should be geared toward analyzing the way in which
hate crime victimization and perpetration are dealt with through the crimi-
nal justice system. This in itself opens up an array of empirical opportuni-
ties. For example, police responses could be monitored more extensively to
explore the ways in which individual forces and ground-level officers oper-
ationalize the guidance offered at a senior strategic level in their responses
to the different strands of hate crime. The increased awareness that has
come through the introduction of regular and systematic police diversity
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training over the past ten years or so is certainly a step in the right direc-
tion;
9
that said, and as we have seen in the UK, the cultural difficulties
surrounding the policing of diversity, and the evidence of residual and
mutual mistrust among minority groups and police officers, makes it diffi-
cult to know whether the strategic prioritization of hate crime has funda-
mentally altered the way in which officers on the ground conceive of the
process of victimization or engage with issues of diversity (Chakraborti,
2009).
Similarly, while the bulk of scholarly attention in this context has
focused on policing in its narrow sense, we have much to learn about the
ways in which hate crimes are punished, how laws are enforced, and how
offending behavior and motivations are addressed. In this regard, the deci-
sion-making processes at play in the recording and prosecuting stages of the
criminal justice response to hate crime could be subjected to more extensive
investigation. So too could the effectiveness of measures introduced specifi-
cally to improve the situation for potential and actual hate crime victims,
whether this be the deployment of third-party reporting mechanisms,
10
community engagement strategies, or the practical application of victim
support mechanisms: While the maturation of hate crime discourse over the
past ten years or so may have led to a welcome growth of such initiatives,
taking steps to ensure that they work effectively, and not merely tokenisti-
cally, should feature highly on the hate studies agenda. Alternatively, schol-
ars might choose to focus their energies on examining the scope for using
alternative modes of justice for dealing with hate crime perpetrators, as
American writers have done for some time now in calling for further
deployment of restorative interventions (Shenk, 2001). Indeed, researchers
from different countries and disciplines are now increasingly exploring the
use of non-punitive responses to hate crime offenders—and the limitations
of solely punitive responses in repairing the harms suffered by victims and
in challenging offender prejudices–and such moves are both laudable and
highly necessary (see, inter alia, Walters & Hoyle, 2010; Gadd, 2009;
Coates, Umbreit, & Vos, 2006).
VII. C
ONCLUSION
Hate crime is clearly a challenging subject with the capacity to divide
opinion among scholars committed to challenging prejudice and “othering”
in its various guises. Problematizing the notion of hate crime has been an
important part of the academic agenda over recent years, but at the same
time, it is important not to become preoccupied by its associated difficulties
and to thereby lose sight of the positive developments that have taken place
as a result of the hate crime movement. Certainly, it is no accident that the
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24 JOURNAL OF HATE STUDIES [Vol. 8:9
emergence of hate crime discourse has coincided with real change in politi-
cal and cultural attitudes toward prejudice perpetuated against a range of
minority groups. While in the past there may have been something of a
hierarchy of recognition among minority groups, with “race” and minority
ethnic concerns arguably receiving the most attention, it would seem that
this hierarchy has leveled out to the point where other identities are rightly
attracting increased attention within policy and scholarly domains. Along
with this wider recognition has come a more nuanced understanding of the
way in which people can belong simultaneously to different communities,
and can therefore have multiple identities and be prone to multiple forms of
victimization (Garland, Spalek, & Chakraborti, 2006).
Just as importantly, while there are clear limits to the deterrent capac-
ity of hate crime laws, we should not underestimate the symbolic role that
such laws can play in societies in which the values, identities, and cultures
of particular communities are under increased scrutiny. Hate crimes are
often described within the academic literature as “message crimes”
designed to convey a message from the perpetrator to the victim and to their
wider community that the victim “doesn’t belong”; to extend the analogy,
governments too can convey a message of solidarity to vulnerable commu-
nities through the criminalization of actions or expressions that violate the
core values of a diverse society.
This more hopeful take on hate crime–which encourages scholars to
weigh up its limitations against the not inconsiderable advances that have
been made on behalf of potential and actual victims–does not mean that we
should close our eyes to the problems associated with the concept. Rather, it
requires criminologists to scrutinize its practical application to ensure that
the core values at the heart of the hate crime movement are not diluted or
subverted. In this respect, I agree with the sentiments of Barbara Perry
(2010), who describes the present situation in the following terms:
My review of the post-9/11 scholarship on hate crime leads me to con-
clude that, while out of its infancy, the field has not yet matured into
adulthood. There is still considerable ground to cover. I don’t see this
necessarily as cause for despair so much as it is inspiring for those of us
working in the field. It means that there are niches that we can carve out,
contributions that are still to be made.
As the preceding discussion will ideally have made clear, these sentiments
are certainly true; there are niches to carve and contributions still to be
made, and the underlying impetus behind our efforts in this regard should
be our ongoing battle against processes of “othering.” Despite the interna-
tional prioritization of hate crime–and the associated series of academic
publications, action plans, policy reviews, and guidance documents that
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2010] CRIMES AGAINST THE “OTHER” 25
have accompanied this prioritization–we still live in societies characterized
by disturbingly high levels of hate crime, and this is testimony both to the
continued marginalization of the Other and to the failings of existing policy
and enforcement mechanisms. We may have made some progress, but
nonetheless the sheer extent and impact of hate crimes taking place should
preclude our feeling complacent with regard to how far we have come.
Indeed, while it is true to say that there is now much greater awareness than
ever before about hate crime and its dynamics, the preceding discussion has
hinted at just how much more there is to learn.
N
OTES
1. The Macpherson report–or the Stephen Lawrence inquiry report, as it sometimes
referred to–is the report of a public inquiry, chaired by Sir William Macpherson, into the
flawed police investigation into the racist murder of Stephen Lawrence in southeast London
in 1993. The report produced over 70 recommendations designed to transform the policing
of “race” and diversity within the UK and to improve levels of trust and confidence in the
police among minority ethnic communities.
2. While unavailable at the time of writing, an updated guidance manual on hate crime
is due to be published by ACPO in 2010/11.
3. Recommendation 12 of the Macpherson report defines a racist incident as “any
incident which is perceived to be racist by the victim or any other person” (Macpherson,
1999, para. 45.17).
4. While ACPO’s guidance is not directly applicable to Scotland, the Scottish Working
Group on Hate Crime consultation document of 2003 indicates an almost identical line of
thinking to that developed in ACPO’s guidance to police forces in England, Wales, and
Northern Ireland.
5. LGBT is the abbreviation commonly used to collectively represent lesbian, gay,
bisexual, or transgendered people.
6. The freedom of expression clauses were inserted into the Public Order Act by the
Racial and Religious Hatred Act 2006 and the Criminal Justice and Immigration Act 2008 in
sections 29J and 29JA respectively.
7. Help the Aged (2008) reports that, at any one time, over half a million older people
are subject to elder abuse–which can take the form of physical, sexual, psychological, or
financial abuse, neglect, or discriminatory treatment–with two-thirds of these acts of abuse
committed at home by someone in a position of trust. The research of O’Keeffe, Hills,
Doyle, McCreadie, Scholes, Constantine, et al. (2007) estimates that around 227,000 people
aged 66 and over in the UK were neglected or abused in the year leading up to their study.
8. The murder of Sophie Lancaster served as a particularly acute reminder of the
vulnerability of members of youth subcultures, with the judge at the trial of her murderers
specifically referring to the case as a hate crime in which the victims had been singled out
because of their “difference.” Sophie and her boyfriend, Robert Maltby, both committed
Goths, were confronted by a gang of youths on August 10, 2007 as they were making their
way home across a park in Bacup, Lancashire (the north of England). The attackers kicked
and stamped upon Robert until he lay unconscious before turning on Sophie, leaving both in
a coma. While Robert recovered sufficiently to be able to leave hospital two weeks later,
Sophie died as a result of the brain injuries she suffered.
9. In the UK, the publication of the Macpherson report in 1999 gave impetus to the
delivery of mandatory diversity training to police officers, while police training schemes
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26 JOURNAL OF HATE STUDIES [Vol. 8:9
such as the Law Enforcement Officers Program (LEOP) run by the Office for Democratic
Institutions for Human Rights has seen a similar prioritization emerge elsewhere in Europe.
10. Third-party reporting is the mechanism by which victims of hate crime can report
their experiences to organizations other than the police service. Following the publication of
the Macpherson report, these reporting schemes have been widely adopted in the UK as a
way of encouraging higher rates of reporting from minority victims.
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